Anderson's Paving, Inc. v. Hayes

Citation295 S.E.2d 805,170 W.Va. 640
Decision Date12 May 1982
Docket NumberNo. CC927,CC927
CourtSupreme Court of West Virginia
PartiesANDERSON'S PAVING, INC., et al., etc. v. Ralph E. HAYES, P. A., Greenbrier County.

Syllabus by the Court

1. Under First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), to the extent that W.Va.Code, 3-8-8 [1978] and W.Va.Code, 3-9-14 [1978] prohibit the expenditure of corporate money on direct corporate speech for the purpose of influencing the vote on a referandum issue at a public election, they are unconstitutional.

2. "Where a statute serves an urgent and necessary public purpose but is technically deficient for constitutional reasons, this Court will apply the doctrine of the least intrusive remedy and give the statute, wherever possible, an interpretation which will cure its defect and save it from total invalidation." Syl. pt. 2, Weaver v. Shaffer, 170 W.Va. 107, 290 S.E.2d 244 (1980).

Jackson, Kelly, Holt & O'Farrell, Thomas E. Potter, M. Blane Michael and James R. Snyder, Charleston, for plaintiffs.

Chauncey H. Browning, Atty. Gen. and Marianne K. Hoover, Asst. Atty. Gen., Charleston, for defendant.

A. J. Manchin by Timothy N. Barber, Charleston, W. Va. Education Ass'n by Jacqueline A. Kinnaman and Robert E. Wise, Jr., Charleston, for intervenors.

The W. Va. Chamber of Commerce by Love, Wise, Robinson & Woodroe, Charles R. McElwee and William C. Porth, Charleston, for amicus curiae.

NEELY, Justice:

In the certified case before us we are asked to do nothing more than apply the law, as formulated clearly and unambiguously by the United States Supreme Court, to the facts of this case.

I This Case

On 11 April 1981 the West Virginia Legislature adopted Senate Joint Resolution No. 2, which proposes an amendment to the West Virginia Constitution designated as the "Roads for Jobs and Progress Amendment" (Road Bond Amendment). This amendment will be submitted to the electorate for ratification at a special election to be held on Tuesday, 3 November 1981.

On 3 August 1981 the plaintiffs sent a letter to the Prosecuting Attorney of Greenbrier County informing him that the plaintiff corporation planned to make contributions in support of the passage of the Road Bond Amendment. In the letter the plaintiffs asked whether they would be prosecuted under W.Va.Code, 3-8-8(a) and 3-9-14 [1978], which make it a criminal offense for any corporation, officer or agent acting on behalf of a corporation to make political contributions for the purposes of influencing any election issue. 1 The plaintiffs informed the prosecutor that the United States Supreme Court decision in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) made the West Virginia statutes in question unconstitutional.

On 20 August 1981 the prosecuting attorney replied. He distinguished the statute at issue in Bellotti from our own statutes and informed the plaintiffs that he would prosecute them should the corporation make any contributions. Upon receipt of this reply, plaintiffs filed an action for declaratory judgment in the Circuit Court of Greenbrier County seeking to have the two statutes in question declared unconstitutional. The State moved to dismiss and the pure legal issue of constitutionality was joined. After due consideration of the defendant's motion and the U. S. Supreme Court's decision in Bellotti, the circuit court held the two statutes unconstitutional. The circuit court then certified the question of the constitutionality of the statutes to this Court.

II The Bellotti Case

In First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) the United States Supreme Court struck down as unconstitutional a Massachusetts statute making it unlawful for a corporation to contribute funds or other valuable assistance to campaigns for or against any election issue or candidate. In that case the appellants, which were several national banking associations and business corporations, sought to contribute funds to publicize their opposition to a referendum to permit enactment of a state graduated personal income tax.

The Supreme Court addressed the issue by examining whether the First Amendment protected the sort of speech which the appellants wanted to make. Finding the political subject matter of the proffered speech to be "at the heart of the First Amendment's protection," the Court next determined that the corporate nature of the speaker did not deprive the speech of its constitutional protection. 435 U.S. at 776-84, 98 S.Ct. at 1415-1420. The Court then made short work of the State's arguments in defense of the statute. Having determined that the statute entailed state-imposed restrictions on constitutionally protected speech, the Court examined the State's justifications for the statute with "exacting scrutiny." It found that there were no facts to justify the State's concern that corporate contributions would harm the electoral process. In turn the Court found that the statute's alleged protection of minority shareholders was both overinclusive and underinclusive and that the State's argument was, therefore, unconvincing. Id. at 786-95, 98 S.Ct. at 1421-1426.

III Applying II to I

The State would have us distinguish the Bellotti case from the case under consideration on the grounds that W.Va.Code, 3-8-8(b)(1)(C) [1978] permits the use of corporate facilities for the purpose of soliciting voluntary contributions from stockholders and employees which may then be expended from a separate fund for political purposes. While this does provide a tenuous basis for distinguishing the two cases, the Court concludes that the United States Supreme Court squarely held that a state may not limit a corporation's right to communicate its views on public issues. See also Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980).

The difficulty of achieving a majority consensus in this controversial area of political balance and free speech undoubtedly had its effect upon the majority opinion in Bellotti. We find it difficult to follow the logic of the Supreme Court's opinion which distinguishes between election issues and support of candidates. Nevertheless the facts of the case and the Supreme Court's holding are both abundantly clear. It is important, however, to recognize that the Supreme Court distinguished between corporate speech which relates to public issues and corporate speech which relates to the election of individual candidates for office, so that our opinion today in no way disturbs our State statute on this latter subject. A majority of this Court (but not this writer) disagree with the conclusions concerning corporate speech enunciated in Bellotti ; however, the obligation of this Court is to follow the law as articulated by the United States Supreme Court.

Consequently, the Court finds that to the extent that W.Va.Code, 3-8-8 [1978] and W.Va.Code, 3-9-14 [1978] prohibit the expenditure of corporate money on direct corporate speech for the purpose of influencing the vote on a referendum issue at a public election, they are unconstitutional. In all other regards we find those statutory provisions constitutional and, rather than strike the provisions in their entirety, apply our doctrine of the least intrusive remedy to prohibit only their enforcement against corporations engaging in direct corporate speech on a public issue. As this Court said in syl. pt. 2 of Weaver v. Shaffer, 170 W.Va. 105, 290 S.E.2d 244 (1980):

Where a statute serves an urgent and necessary public purpose but is technically deficient for constitutional reasons, this Court will apply the doctrine of the least intrusive remedy and give the statute, wherever possible, an interpretation which will cure its defect and save it from total invalidation.

See also State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318 (1977). Again we emphasize that our holding in no way affects the law with regard to contributions to political candidates or direct corporate speech in support of, or in opposition to, political candidates running in public elections.

After oral argument on 29 September 1981, we handed down a decision in favor of the plaintiffs on 15 October 1981. On 12 November 1981, after the Road Bond Amendment had been defeated at the polls, we granted the West Virginia Education Association and A. James Manchin, as Secretary of State of West Virginia, the right to intervene. On 15 December 1981 we granted a rehearing to the original and intervening parties so that we could consider any issues that were either not raised or not fully developed due to the necessary speed with which this case was originally heard. This case was reargued before us on 5 May 1982. We now conclude that the original decision interpreted and applied the law correctly.

Accordingly for the reasons set forth above this Court confirms the lower court's ruling on the constitutionality of the statutes in question as those statutes relate to direct corporate speech addressed to referendum issues but we decline to invalidate the statutes as they relate to other areas of corporate participation in elections.

Ruling affirmed.

McGRAW, Justice, dissenting:

The analysis of the constitutionality of W.Va.Code §§ 3-8-8(a) and 3-9-14 [1978] should not begin and end with an unquestioning application of First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). In Bellotti, the United States Supreme Court, under the guise of extending First Amendment freedom of expression to corporations, has in reality given constitutional sanctioning to the potential abuses of referendum elections sought to be avoided by approximately 31 state legislatures and Congress, where statutes similar to the ones here in question have been adopted, and has...

To continue reading

Request your trial
9 cases
  • West Virginia Citizens Action Group, Inc. v. Daley
    • United States
    • West Virginia Supreme Court
    • December 21, 1984
    ...in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). See also Anderson's Paving, Inc. v. Hayes, 295 S.E.2d 805 (W.Va.1982). Finally, we note that the types of advocacy in which the petitioners engage are at the core of the interests protected by ......
  • Bailey v. Truby
    • United States
    • West Virginia Supreme Court
    • July 11, 1984
    ...of education to amend their rules. For other applications of the "least intrusive remedy" doctrine, see Syl. pt. 2, Anderson's Paving, Inc. v. Hayes, 295 S.E.2d 805 (W.Va.1982); Syl. pt. 2, Weaver v. Shaffer, 290 S.E.2d 244 (W.Va.1980); Syl. pt. 2, State ex rel. S.M.B. v. D.A.P., 284 S.E.2d......
  • Dostert, In re
    • United States
    • West Virginia Supreme Court
    • November 7, 1984
    ...by various decisions of this Court. See Bailey v. Truby, 321 S.E.2d 302 at 306, slip op. at 2 (W.Va.1984); Anderson's Paving, Inc. v. Hayes, 295 S.E.2d 805, 807 (W.Va.1982); Don S. Co. v. Roach, 285 S.E.2d 491, 496 (W.Va.1981); State ex rel. S.M.B. v. D.A.P., 284 S.E.2d 912, 916 (W.Va.1981)......
  • State ex rel. Roy Allen S. v. Stone
    • United States
    • West Virginia Supreme Court
    • June 14, 1996
    ...wherever possible, an interpretation which will cure its defect and save it from total invalidation.' Syllabus Point 2, Anderson's Paving, Inc. v. Hayes, W.Va. , 295 S.E.2d 805 (1982)." Syl. pt. 2, McGuire v. Farley, 179 W.Va. 480, 370 S.E.2d 136 6. A putative biological father must prove b......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT